In Maryland v. Shatzer, the first case of the October 2009 Term, the Court heard oral arguments regarding the scope of the Edwards prohibition on interrogation once a right to counsel has been asserted. Maryland Attorney General Douglas Gansler urged the Court to adopt a bright-line rule terminating the Edwards prohibition following a break in custody from custodial interrogation, which would include Mr. Shatzer's return to the prison population where he resided while serving time for another crime. Gansler stressed that multiple federal circuits and states have already adopted this rule, but Justices Ginsburg and Sotomayor pointed out that returning to prison does not provide the same freedoms as returning home following interrogation.Supporting the "break in custody" rule, Assistant to the Solicitor General Toby Heytens argued that Edwards is a prophylactic rule designed to prevent the police from badgering a suspect into waiving his Miranda rights, but that no such badgering occurred in this case. Both Heytens and Gansler argued that a "break in custody" rule is necessary so that individuals are not forever immune from police questioning. Concerned with the arbitrariness of the proposed rule, several Justices asked them to suggest a time limit; Gansler proposed seven days.

Shatzer's counsel, Baltimore Assistant Public Defender Celia Davis, argued that the Court should maintain Edwards as a bright-line rule that prohibits re-interrogation indefinitely. Responding to a hypothetical from Justice Alito, she contended that it would not matter whether the suspect was approached about a different crime, in a different state, decades later: Edwards would remain intact, with the burden on the police to determine if the suspect had asserted his right to counsel in the past. Davis argued that Shatzer had no reason to believe that a request for counsel would be fulfilled, because he had not received counsel after his original request.

A large portion of the argument focused on the substantive scope of Edwards and Miranda, as well as the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel. Gansler argued that only the former is protected and that the police only have an obligation to stop speaking with a suspect; there is no obligation to find him an attorney. Chief Justice Roberts and Justice Ginsburg pointed out that Shatzer knew, based on his original interrogation, that if he invoked his right to counsel then the police would have stopped questioning him, regardless of whether he believed he would in fact receive attorney assistance. Justice Stevens proposed a rule whereby a prisoner is given the choice to see or deny visitors, in which case permitting visitors would remove him from "custody" and Edwards protections. Justice Breyer proposed a rule akin to the civil rule prohibiting lawyers from speaking to a client who is represented by an attorney, asking whether the interrogator did not reasonably believe the suspect was in search of, or already represented, by counsel. Justice Scalia focused on giving the police a clear standard.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.